Terms of Service
Last Modified: October 24, 2019
These Terms of Service (the “Terms of Service” or “Agreement”) set forth the terms and conditions governing the relationship between Rigid Bits LLC (“Rigid Bits”) and the customer identified in the applicable Web Order (defined below), Service Order or Statement of Work (collectively, the “Order”) or other agreement (“Customer” or “you”) relating to the services provided by Rigid Bits (the “Services”).
1.1 Scope of Services
Subject to the terms and conditions of this Agreement, Rigid Bits shall provide the services agreed to by the Parties through the www.rigidbits.com website (a “Web Order”), or as set forth in a Services Order (“SO”), Statement of Work (“SOW”) or other agreement as may be further described and defined in Schedule A (the “Services”). Customer shall not control the manner or means by which Rigid Bits performs the Services.
1.2 Additional Terms
1.2.1 Order Terms
Each Web Order, SO or SOW may contain additional terms and conditions applicable to the Services(the “Order Terms”). To the extent there is any conflict between the Order Terms and the main body of the Terms of Service, the Order Terms shall control.
1.3 Changes to Services
Rigid Bits reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance the quality or delivery of Rigid Bits’ Services to its customers, the competitive strength of or market for Rigid Bits’ Services or the Services’ cost efficiency or performance; or (b) to comply with applicable law.
1.4 Savings Clause
Rigid Bits’ failure to perform, or delay in performing, its responsibilities under this Agreement (including any Web Order, SO or SOW) shall be excused if and to the extent that Rigid Bits demonstrates that such non-performance or delay is caused by: (i) the failure of Customer or Customer personnel to perform their obligations under this Agreement; (ii) any act performed or omitted by Rigid Bits or Rigid Bits personnel at the request of Customer; (iii) any act performed by Customer or Customer personnel to the extent that such act was not otherwise agreed by the Parties; or (iv) system failure caused by a malicious third-party technical attack causing a sudden, unplanned increase in network activity above the threshold capacity of Rigid Bits systems.
1.5 Third Party Services
Rigid Bits may make certain third-party products or services available to Customer, or may make its Services available to be used by Customer within certain third-party products or services (all third-party products and services collectively referred to as “Third-Party Services”), for which Rigid Bits makes no representations, warranties or indemnities and will have no other liability hereunder, notwithstanding anything contained in this Agreement. Customer’s exclusive remedy with regard to Third Party Services shall be against the Third-Party.
2. Access and Use, Customer Restrictions
2.1 Access and Use
Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Rigid Bits hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the term of the applicable Order solely for use by Authorized Users in accordance with the terms and conditions in this Agreement. Such use is limited to Customer’s internal use. “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased.
2.2 Reservation of Rights
Nothing in this Agreement grants any right, title or interest in or to (including any license under) any intellectual property rights in or relating to, the Services, the Rigid Bits Website, or third-party materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Rigid Bits Website, and third-party materials are and will remain with Rigid Bits and the respective rights holders in the third-party materials.
2.3 Authorization Limitations and Restrictions
Customer shall not, and shall not permit any other person to, access or use the Services except as expressly permitted by this Agreement and, in the case of Third-Party Services or Third-Party Materials (defined below), the applicable third-party services agreement, license agreement or other Third Party Terms. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
- copy, modify or create derivative works or improvements of the Services;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
- reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part;
- bypass or breach any security device or protection used by the Services or access or use the Services other than by an Authorized User through the use of his or her own then valid access credentials;
- input, upload, transmit or otherwise provide to or through the Services or Rigid Bits website, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code;
- damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, the Rigid Bits website or Rigid Bits’ provision of services to any third party, in whole or in part;
- remove, delete, alter or obscure any trademarks, specifications, documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services, including any copy thereof;
- access or use the Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party or that violates any applicable law;
send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
- send or store infringing, obscene, threatening, libelous, or otherwise unlawful, unsafe, malicious, abusive or tortious material, including material harmful to children or violative of third-party privacy rights;
- send or store material containing software viruses, worms, trojan horses or other harmful computer code, files, scripts, agents or programs;
attempt to gain unauthorized access to the Service or its related systems or networks;
- use the Services in any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries);
use the Services for the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise;
- engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, the Rigid Bits website, or which, as determined by Rigid Bits, may harm Rigid Bits or users of the Rigid Bits website or Services or expose them to liability;
- use any device, software or routine that interferes with the proper working of the Services or the Rigid Bits website;
- access or use the Services for purposes of competitive analysis of the Services, the development, provision or use of a competing software service or product or any other purpose that is to Rigid Bits’ detriment or commercial disadvantage; or
otherwise access or use the Services beyond the scope of the authorization granted under this Agreement.
2.4 Customer Obligations
In addition to any other provision of this Agreement, Customer shall: (i) have responsibility for the accuracy, quality, legality, reliability, and appropriateness of all Customer Materials including all Customer Data (as defined below); (ii) use commercially reasonable efforts to prevent unauthorized control or tampering or any other unauthorized access to, or use of, the Services; (iii) comply with all applicable laws (including laws regarding privacy and protection of consumer information) in using the Services; (iv) obtain and maintain all computer hardware, software and communications equipment needed to access the Services; (v) retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer systems, and sole responsibility for all access to and use of the Services. Customer further agrees that the result of the Services, including any information provided or made available to Customer in connection arising out of the Services, may be used solely for Customer’s internal, lawful business purposes solely with respect to the purposes for which it was provided, and shall not be resold, distributed, sublicensed, or otherwise shared with any other person or entity.
2.5 Suspension or Termination of Services
Rigid Bits may, directly or indirectly, through disabling technology or other legal means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other person’s access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) Rigid Bits receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Rigid Bits to do so; or (b) Rigid Bits believes, in its discretion, that: (i) Customer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of Rigid Bits; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section does not limit any of Rigid Bits’ other rights or remedies, whether at law, in equity, or under this Agreement.
3. Fees and Expenses
In consideration of the provision of Services by Rigid Bits and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the applicable Order. Unless otherwise provided, Rigid Bits will invoice Customer at least once per month. All fees shall be due within ten (10) days after receipt of the invoice. All fees are non-refundable.
Unless otherwise agreed to in the Agreement, Customer shall reimburse Rigid Bits for all reasonable out of pocket expenses incurred in performance of the Services. All expenses related to travel outside of Colorado must be paid in advance.
Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer pursuant to this Agreement; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, Rigid Bits’ income, revenues, gross receipts, personnel or real or personal property or other assets.
3.4 Late Payments
Except for invoiced payments that Customer has successfully disputed, all late payments shall bear a two percent (2%) late charge per month. Customer shall also reimburse Rigid Bits for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Rigid Bits does not waive by the exercise of any rights hereunder), Rigid Bits shall be entitled to suspend the provision of any Services if the Customer fails to pay any amounts when due and such failure continues for five (5) days following written notice of the failure to pay.
3.5 Subscription Services
If you purchase any Services, you agree to pay the applicable fees and taxes agreed to. Rigid Bits’ subscription charges are billed according to the schedule you signed up for (i.e. based on the subscription start and end date, be it daily, monthly, quarterly, semi-annually, or annually) and are not refundable once they have been charged. Rigid Bits does not issue pro-rated refunds on any unused portion of your subscription.
A valid payment method, including credit card, is required to process the payment for your subscription Services. You shall provide Rigid Bits with accurate and complete billing information including full name, address, state, zip code, telephone number, and valid payment method information. By submitting such payment information, you automatically authorize Rigid Bits to charge all subscription Services fees incurred through your account to any such payment instruments. Should automatic billing fail to occur for any reason, Rigid Bits will issue an electronic invoice indicating that you must proceed manually, within a certain deadline date, with the full payment corresponding to the billing period as indicated on the invoice.
If you do not cancel any subscription Services prior to the end of the subscription Services term, the subscription Services will automatically renew at the current Rigid Bits monthly rate and be automatically billed and charged to you using the payment method originally used to purchase the subscription Services. Rigid Bits will provide you with a reasonable prior notice of any change in subscription fees to give you an opportunity to terminate your subscription Services before such change becomes effective. Your continued use of the subscription Services after the fee change comes into effect constitutes your agreement to pay the modified subscription Services fee amount.
4.1 Customer Control and Responsibility
Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) the security and use of Customer’s and its Authorized Users’ access credentials; and (e) all access to and use of the Services directly or indirectly by or through the Customer Systems or its or its Authorized Users’ access credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use. “Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services or that incorporates or is derived from the processing of such information, data, or content by or through the Services.
4.2 Access and Security
Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Services.
5. Rigid Bits Limited Warranty and Limitation of Liability
5.1 Rigid Bits Warranties
Except as otherwise provided, Rigid Bits warrants that it shall use reasonable efforts to perform the Services: (a) in accordance with the terms and subject to the conditions set out in the respective Order and this Agreement, and (b) in a workmanlike and professional manner in accordance with generally recognized industry standards for similar services.
5.2 Remedy for Breach of Warranties
Rigid Bits’ sole and exclusive liability and Customer’s sole and exclusive remedy for breach of the warranties in section 5.1 shall be for Rigid Bits to use reasonable commercial efforts to promptly cure any such breach. The foregoing remedy shall not be available unless Customer provides written notice of such breach within ten (10) days after delivery of the Services giving rise to the claim.
5.3 Disclaimer of Warranties
CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT, EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE SERVICES, INCLUDING ANY RELATED SOFTWARE AND EQUIPMENT, ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND OTHERWISE WITHOUT WARRANTY BY RIGID BITS OR ITS THIRD PARTY PROVIDERS OF ANY KIND AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, RIGID BITS AND ITS THIRD PARTY LICENSORS AND PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY OF NON-INFRINGEMENT. FOR CLARIFICATION PURPOSES, NEITHER RIGID BITS NOR ITS THIRD-PARTY PROVIDERS WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES WITH RESPECT TO PERFORMANCE, ACCURACY, RELIABILITY, SECURITY, CAPABILITY, UPTIME, CURRENTNESS OR OTHERWISE. CUSTOMER WILL NOT HOLD RIGID BITS AND/OR IT’S THIRD PARTY PROVIDERS RESPONSIBLE FOR ANY DAMAGES THAT RESULT FROM CUSTOMER’S USE OF THE SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO RIGID BITS AND/OR ITS THIRD-PARTY PROVIDERS. ALL THIRD-PARTY SERVICES AND THIRD-PARTY MATERIALS ARE PROVIDED “AS IS”, AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY SERVICES OR THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY SERVICES AND THIRD-PARTY MATERIALS.
5.3 Limitation of Liability
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, NEITHER RIGID BITS NOR ITS THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS SHALL BE LIABLE TO CUSTOMER (OR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM CUSTOMER’S RIGHTS) FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND — INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS AND LOSS OF DATA — IN ANY WAY RELATED TO THIS AGREEMENT (INCLUDING ANY ORDER), INCLUDING WITHOUT LIMITATION AS A RESULT OF ANY BREACH OF ANY WARRANTY OR OTHER TERM OF THIS AGREEMENT OR AS A RESULT OF NEGLIGENCE OR BREACH OF STATUTORY DUTY, REGARDLESS OF WHETHER THE PARTY THAT IS LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. IN NO EVENT SHALL RIGID BITS’ LIABILITY FOR A CLAIM UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID TO OR RECEIVED BY RIGID BITS UNDER THE APPLICABLE ORDER FROM WHICH THE CLAIM AROSE DURING THE TWELVE-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE.
6. Third-Party Materials
To the extent the Services include software, content, data, or other materials, including related documentation, that are owned by persons other than Rigid Bits (“Third Party Materials”) and that are provided to Customer on licensee or other terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Terms”), Customer is bound by and shall comply with all Third-Party Terms, and Customer’s exclusive remedy as to the Third Party shall be against the Third-Party. Any breach by Licensee or any of its Authorized Users of any Third-Party License is also a breach of this Agreement.
7. Customer Representations and Warranties
In addition to any other representations and warranties set forth in this Agreement, Customer represents, warrants and covenants that: (i) it is a legal entity duly organized, validly existing and in good standing in the jurisdiction of its incorporation/organization/formation; (ii) it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Agreement; (iii) it has the full right, power and authority to enter into this Agreement and to provide all Customer Materials (including all Customer Data); and (iv) it is now and through the Term shall remain in compliance with all applicable laws. Customer further represents, warrants and covenants that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Materials so that, as received by Rigid Bits and processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law, and that it will comply with all terms and conditions of any agreement between Customer and the provider of Third-Party Services or Third-Party Materials.
8. Mutual Indemnification
In addition to any other indemnification obligations under this Agreement, each party shall defend, indemnify and hold harmless the other party, and its officers, directors, employees, agents, Affiliates, successors and permitted assigns, and third party providers and licensors, from and against any and all claims and losses arising out of or resulting from any third-party Claim alleging: (i) breach by such party of any representation, warranty, covenant or other obligations set forth in this Agreement; (ii) negligence or other fault of such party in connection with this Agreement; and (iii) that any of such party’s materials or intellectual property or use thereof in accordance with the terms of this Agreement infringes any Intellectual Property of a third party.
9. Intellectual Property
Except as otherwise provided, all intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Rigid Bits in the course of performing the Services (collectively, the “Deliverables”), except for any Confidential Information of Customer or customer materials incorporated in the Deliverables, shall be owned by Rigid Bits. Provided full payment has been received by Rigid Bits, Rigid Bits hereby grants Customer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services during the Term.
10. Customer Materials License
Customer hereby grants to Rigid Bits the limited, royalty-free, non-exclusive right and license to the Customer Materials solely as necessary to incorporate the Customer Materials into the work product and deliverables as described in the Agreement and any Order or to use for purposes of providing the Services. “Customer Materials” means, collectively, all content and all other information in any form or media, including but not limited to Customer Data and all other documents, data, know-how, ideas, specifications, software code and other materials provided to Rigid Bits by or on behalf of Customer, whether or not the same: (a) are owned by Customer, a third party or in the public domain; or (b) qualify for or are protected by any intellectual property rights.
11.1 Confidential Information
From time to time during the Term of this Agreement, either party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”), non-public proprietary and confidential information of Disclosing Party (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information.
The Receiving Party shall: (a) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy.
12. Term and Termination
This Agreement shall remain in effect for the duration of the Services provided under the applicable Order (the “Term”).
12.2 Termination for Default
Either party may terminate this Agreement or the applicable Order, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party:
- Materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach.
- Becomes insolvent or admits its inability to pay its debts generally as they become due, becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, is dissolved or liquidated or takes any corporate action for such purpose, makes a general assignment for the benefit of creditors, or has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
13. 1 Entire Agreement
This Agreement, including and together with any Orders, related exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the parties with respect to the subject matter contained in the Agreement, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”) must be in writing and addressed to the other party at its address set forth in the Order (or to such other address that the receiving party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving party; and (b) if the party giving the Notice has complied with the requirements of this Section.
13.3 Independent Contractor
Rigid Bits shall be an independent contractor with respect to the performance of Services under this Agreement. Rigid Bits and Customer agree that nothing in this Agreement shall be (i) construed as constituting Rigid Bits as other than an independent contractor of Customer for any purpose whatsoever or (ii) deemed to create an employer-employee, partnership, franchise or joint venture relationship between Rigid Bits and Customer.
If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the parties shall negotiate in good faith to modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
During the term of this Agreement, and for a period of one (1) year following the expiration or termination of this Agreement, Customer will not, directly or indirectly, (i) solicit, employ, offer employment to, or otherwise engage as an employee, independent contractor, or otherwise, any individual who is or was an employee of Rigid Bits at any time during the term, or in any manner induce or attempt to induce any employee of Rigid Bits to terminate their employment with Rigid Bits, or (ii) materially interfere with the relationship of Rigid Bits with any individual who at any time during, prior to, or after the Effective Date was an employee of Rigid Bits, without the prior written consent of Rigid Bits.
No amendment to or modification of this Agreement or any Agreement is effective unless it is in writing, identified as an amendment to this Agreement, and signed by an authorized representative of each party.
13. 7 Waiver
No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Rigid Bits. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement.
13.9 Successors and Assigns
This Agreement is binding on and inures to the benefit of the parties to this Agreement and their respective permitted successors and permitted assigns.
13.10 No Third-Party Beneficiaries
Agreement benefits solely the parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
13.11 Choice of Law
This Agreement, including the Order and all exhibits attached to this Agreement or Order, and all matters arising out of or relating to this Agreement, is governed by, and is to be construed in accordance with, the laws of the State of Colorado, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Colorado.
Any controversies or disputes arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with current Commercial Arbitration Rules of the American Arbitration Association. The parties shall select a mutually agreeable arbitrator knowledgeable about the issues relating to the subject matter of this Agreement. In the event the parties are unable to agree to such a selection, each party will select and arbitrator and the two arbitrators in turn shall select a third arbitrator, all three of whom shall preside jointly over the matter. The arbitration shall take place in Denver, Colorado, or an otherwise mutually agreed upon by the parties. All documents, materials, and information in the possession of each party that are in any way relevant to the dispute shall be made available to the other party for review and copying no later than 30 days after the notice of arbitration is served. The arbitrator(s) shall not have the authority to modify any provision of this Agreement or to award punitive damages. All arbitrated decisions shall be effective immediately upon entry and shall be binding on the parties until or unless vacated by the arbitrator(s) pursuant to part 2 of article 22 of title 13, C.R.S., or until modified or corrected by the arbitrator pursuant to part 2 or article 22 of title 13, C.R.S.
13.13 Attorney Fees
In any action or proceeding between the parties to enforce the terms of this Agreement, in addition to all other legal or equitable remedies, the prevailing party shall be entitled to recover from the non-prevailing party all costs and expenses, including reasonable attorneys’ fees incurred to enforce this Agreement or by reason of such action or proceeding.
13.14 Force Majeure
Rigid Bits shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Rigid Bits including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
SELECTED SERVICES DESCRIPTIONS
1. Dark Web Monitoring
Rigid Bits will make available to Customer Third-Party Services relating to searching, monitoring and reporting of Customer’s digital credentials as set forth and provided in the Third-Party Services Agreement and License Terms agreed to by Customer.
2. Cybersecurity Gap and Risk Analysis
Rigid bits will make available to Customer Rigid Bits’ online questionnaire on the Rigid Bit’s Website regarding Customer’s IT environment and current policies. After completing the questionnaire, Customer can contact Rigid Bits to set up a one-time remote telephone conference to discuss any potential risks identified by Rigid Bits.
3. Cybersecurity Starter Pack
For the duration on the subscription period paid for by Customer, Customer will be provided access to Rigid Bits’ Website to access to the following Rigid Bits’ proprietary content:
- Various Rigid Bits policy/procedure, incident response, and other document templates that can be downloaded and used by Customer solely for its internal business purposes to assist Customer in creating or enhancing its cybersecurity program.
- An online IT risk assessment questionnaire to help Customer assign risks to each of its systems.
- An online vendor risk assessment questionnaire that may be sent to Customer’s potential and existing vendors.
All data, information, forms and other content available from the Rigid Bits’ website shall be used solely by Customer for Customer’s internal business purposes. Except for the vendor questionnaire which may be sent to current or potential vendors, all Rigid Bit content, forms, questionnaires, results provided by using the assessments, and other Rigid Bits’ intellectual property is not to be provided or disclosed to any third party